R v C, G - [2013] SASCFC 83

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v C, G
[2013] SASCFC 83
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Blue)
16 August 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - GENERALLY
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - CORROBORATION - WHAT CONSTITUTES CORROBORATION - OTHER CASES
The appellant was charged with four counts of unlawful sexual intercourse with JM and five counts of unlawful sexual intercourse and one count of procuring an act of gross indecency with JM’s sister, NM. He was also charged with persistent sexual exploitation of DF, AP and AP’s brother, BP. He pleaded guilty to one count of unlawful sexual intercourse with NM and not guilty to all other charges. After a trial by judge alone, a Judge of the District Court convicted the appellant on all counts.
The appellant appeals against his conviction on the following grounds:
1.       the Judge erred in ruling that evidence relevant to the appellant’s conduct in relation to the female complainants, JM and NM, was cross-admissible in relation to the counts involving the male complainants, DF, AP and BP, and vice versa;
2.       the Judge erred in finding that there was no reasonable possibility of concoction or contamination as between the complainants;
3.       the Judge erred in admitting evidence of discreditable conduct to which no objection was taken at trial;
4.       the Judge erred in his findings as to corroboration or supporting evidence in relation to JM, NM and AP;
5.       the Judge failed to make factual findings in respect of the fourth count of unlawful sexual intercourse with JM;
6.       the Judge erred in the use which he made of the plea of guilty to the fifth count involving unlawful sexual intercourse with NM;
7.       the Judge failed to find two uniquely identified acts of sexual exploitation against each of DF, AP and BP;
8.       the Judge failed to direct himself as to the elements of indecent assault being acts of sexual exploitation found in respect of BP.
Held by the Court dismissing the appeal:
1.       The evidence of the male and female complainants was cross-admissible due to the degree of similarity and underlying unity and pattern disclosed by that evidence (at [57]-[60]).
2.       The Judge did not err in excluding a reasonable possibility of concoction or contamination (at [55]-[56]).
3. Section 34P of the Evidence Act 1929 (SA) does not require a trial judge to reject evidence capable of being characterised as discreditable conduct evidence when there is no objection by the defendant to that evidence (at [50]-[53]).
4.       The Judge did not err in his assessment of corroboration or supporting evidence (at [64]).
5.       It is evident from the Judge’s reasons that he made findings of fact necessary to enter a verdict of guilty on count 4, even though he did not express those findings in his reasons for judgment. On a review of the evidence, those findings were open and correct (at [73]-[74]).
6.       The Judge made appropriate use of the admissions resulting from the defendant’s plea of guilty to count 5 (at [75]).
7. Section 50 of the Criminal Law Consolidation Act 1935 (SA) does not require a uniquely identified occasion on which an act of sexual exploitation occurred in circumstances in which the complainant cannot uniquely identify such occasions. It is sufficient if the acts of sexual exploitation are otherwise properly identified (at [87]-[89]).
8.       The Judge’s findings in relation to BP demonstrated that he correctly identified and addressed the elements of indecent assault, even though he did not explicitly identify those elements in his reasons for judgment (at [90]).
Evidence Act 1929 (SA) s 9, s 21 and s 34P; District Court Criminal Rules 2013 (SA) r 16; Supreme Court Criminal Appeal Rules 1996 (SA) r 12; Criminal Law Consolidation Act 1935 (SA) s 50; Criminal Code 1899 (Qld) s 229B; Crimes Act 1958 (Vic) s 47A, referred to.
R v C, CN [2013] SASCFC 44; R v Starrett (2002) 82 SASR 115; R v M, BJ (2011) 110 SASR 1; R v Ellis (2010) 107 SASR 94; Borg v Gelios (Unreported, Full Court of the Supreme Court of South Australia, Cox, Matheson, Debelle JJA, 8 May 1996); R v Ames [2012] SASCFC 75; R v SLJ (2010) 24 VR 372; REE v The Queen (2010) 203 A Crim R 11; KBT v The Queen (1997) 191 CLR 417; R v Warsap (2010) 106 SASR 264, considered.

R v C, G
[2013] SASCFC 83
Court of Criminal Appeal: Gray, Sulan and Blue JJ
THE COURT.

This is an appeal against conviction.
The defendant and appellant was charged on Information with sexual offending against five complainants. Counts 1 to 4 alleged acts of unlawful sexual intercourse with JM, a girl aged 13 years. Each count specified that the alleged act took place between 26 December 1993 and 31 January 1994 at Salisbury. Counts 5 to 9 alleged acts of unlawful sexual intercourse with NM, a girl aged 13 years. Count 10 alleged one count of procuring an act of gross indecency, also with NM. Counts 5 to 10 each specified that the alleged act took place between 26 December 1993 and 31 January 1994 at Salisbury.
Count 11 alleged the offence of persistent sexual exploitation of a child, DF, a boy under the age of 17 years, committed between 1 May 1987 and 10 May 1994 at Hillbank and other places. Count 12 alleged the offence of persistent sexual exploitation of a child, AP, a boy under the age of 17 years, committed between 1 January 1996 and 31 December 2000 at Paralowie. Count 13 alleged the offence of persistent sexual exploitation of a child, BP, a boy under the age of 17 years, committed between 8 January 1998 and 8 January 2002 at Paralowie.
The Trial
The defendant elected to be tried by judge alone in the District Court. On his arraignment at the commencement of the trial on 15 January 2013, the defendant pleaded guilty to count 5; that is, to the offence of unlawful sexual intercourse with NM, the girl aged 13 years. The trial proceeded in respect of the remaining 12 counts. On 22 February 2013, the defendant was convicted on all counts. With the exception of the conviction recorded on count 5, the defendant seeks to set aside the convictions on the remaining counts.
All counts proceeded at the one trial. The defence accepted that the evidence of the two girls in respect of counts 1 to 10, and in respect of the uncharged acts, was cross-admissible on those counts. The defence also accepted that the evidence of the three boys in respect of counts 11 to 13 was cross-admissible on those counts. However, the defence indicated that it opposed the cross-admissibility of the evidence in respect of the counts concerning the two girls and the evidence in respect of the counts concerning the three boys. Ultimately, the Judge concluded that the evidence on each count was cross-admissible on all other counts, having found an underlying unity that warranted this conclusion.
The Prosecution Case
The defendant is related to each complainant on his mother’s side. The defendant’s mother is the sister of the father of the boys AP and BP, and the sister of the mother of the boy DF. The defendant’s mother is the aunt of the mother of the girls, JM and NM. At relevant times, AP, BP and DF resided in South Australia and JM and NM resided in New South Wales.
JM and NM are identical twin sisters. They lived with their parents and younger sister, KM. Arrangements were made for JM, NM and KM to travel to South Australia and spend two weeks of their summer holidays in January 1994 with the defendant and his wife at Salisbury. It was during this two week period that the alleged offending against JM and NM occurred. Evidence was also led of uncharged acts of sexual offending during this period against both girls. Both JM and NM gave evidence at the trial. They both described how they were given gifts, namely, a teddy bear, flowers and perfume, upon their arrival at the defendant’s home. They described how the defendant allowed them to stay up late, watch scary movies, smoke cigarettes and drink alcohol. JM and NM took turns at sleeping in their own room, which they said that they particularly enjoyed as they always had to share a room at home. The defendant imposed more relaxed rules than those to which JM and NM were ordinarily subjected at home. They were treated more favourably and in a more relaxed fashion than their younger sister, KM.
JM gave evidence of uncharged sexual conduct, being kissing to her mouth by the defendant on a few occasions, which was said to have commenced soon after her arrival. The incident involving the first charge occurred while JM and NM were watching the movie “The Exorcist” with the defendant in the lounge room of the Salisbury home. The defendant’s wife and KM had gone to bed. At a time when NM had fallen asleep in the lounge room, the defendant committed two uncharged acts, the digital penetration of JM’s vagina and then an act of cunnilingus. Then followed the first of the charged acts, the defendant causing JM to perform an act of fellatio on him. This was followed by the third of the charged acts, the insertion of the defendant’s penis into the anus of JM. Then the second of the charged acts occurred, the insertion of the defendant’s penis into JM’s vagina. NM gave evidence of having watched the film “the Exorcist” and of having gone to bed. She could not recall where JM or the defendant were when she went to bed.
Sometime during the two week period, the defendant took the three girls to Victor Harbour on a camping trip. The defendant’s wife did not accompany them. They stayed in a cabin. While NM and KM were asleep, the defendant touched JM’s thighs and kissed her. These were uncharged acts.
A few days before the sisters returned to New South Wales, JM accompanied the defendant to an unfurnished house, where he inserted his penis into her vagina. This was the fourth count. Following the sisters’ return to New South Wales, the defendant kept in contact with JM, sending her letters and gifts, including tapes of love songs. JM was aware that the defendant was making similar contact with NM, and said that she felt jealous when the defendant contacted NM.
NM gave evidence of the defendant engaging in sexual activity with her on a night after the night on which they had watched the film “the Exorcist”. The defendant came to NM’s room and suggested that they move to the lounge to watch TV. The defendant started to touch NM’s breasts and then her vagina. The defendant told NM to remove her clothing and caused her to perform an act of fellatio on him. This was the sixth charged act. The defendant then inserted his penis into NM’s anus, the seventh of the charged acts. The defendant then inserted his penis into NM’s vagina. This was the fifth charged act, the subject of the plea of guilty. After the defendant removed his penis from NM’s vagina, he masturbated in her presence and ejaculated.
Several days later, the defendant came to NM’s room early one morning and took her to the garage. He told her to undress and then inserted his penis into her anus, the eighth charged act. After removing his penis from her anus, he masturbated in front of NM until he ejaculated. The following morning, the defendant again took NM to the garage. On this occasion the defendant inserted his penis into NM’s vagina, the ninth charged act. A third occasion of vaginal sexual intercourse with NM occurred in the garage. This was an uncharged act.
NM recounted that on the camping trip to Victor Harbour, the defendant took hold of her hand and caused her to rub his penis underneath the bed covers, the tenth charged act. JM was in the same bed at this time. NM gave evidence of other uncharged acts including intimate hugs, kisses to the lips and an occasion when the defendant attempted to insert his penis into her vagina.
On the sisters’ return to New South Wales, NM stayed in contact with the defendant, which included the writing of letters. Sometime after returning to New South Wales, NM wrote a letter to the defendant in which she informed him of excessive bleeding and blood on her underpants. She said that she missed the defendant very much and at the conclusion of the letter wrote, “PS I won’t tell anyone our little secret because I know THE CONSEQUENCES”. NM explained in evidence that the reference to the bleeding was a reference to what had occurred after the defendant engaged in sexual activity with her in South Australia. NM also explained that the reference to consequences was a reference to a threat made by the defendant that, if NM told anyone what had happened, he would kill her parents and no one would believe her. NM’s mother discovered this letter and confronted NM about its contents. NM lied and said that she had had sex with a boy in a park while she was in Adelaide.
Evidence was given by AS, a school friend of JM and NM. AS said that towards the end of the school year in 1994, JM told her that JM had been raped by a person that she had referred to as “uncle”. AS also recounted a conversation with NM some two months later in which NM told her that she had been sexually assaulted by her uncle, whom she also described as her mother’s cousin. AS also gave evidence that in around early 1995, she had a conversation with both JM and NM about the topic of sexual assault. AS formed the perception that, as a result of this conversation, JM and NM each became aware that the other had also been the victim of a sexual assault, although this was not apparently based on anything which JM or NM said. In about the year 2000, AS again spoke with both JM and NM about the topic of sexual assault and, as a result of this conversation, AS came to realise that it was the same person that had sexually assaulted both girls.
DF alleged that the defendant engaged in sexual offending with him commencing when he was about 12 years of age in about 1990. DF spent time with the defendant following the death of DF’s father. The defendant took DF on outings, including camping trips and to the movies. The defendant spent money on DF. DF slept over at the defendant’s house several times a month from when he was aged 12 years to when he was aged about 14 or 15 years. This occurred initially at Hillbank and later at Salisbury. DF worked for the defendant at his stall at the Gepps Cross markets and stayed the night at the defendant’s home at Salisbury on Saturday nights. It was DF’s evidence that sexual activity occurred when he slept over at houses occupied by the defendant.
DF could not remember particular incidents of sexual activity, but gave evidence of a course of conduct. DF recounted how the defendant would rub oil on his own penis, would masturbate in front of DF and would ejaculate on DF. The defendant would also rub oil or lotion on DF and would masturbate DF. On occasions, the defendant would rub lubricant on DF’s thighs and lie behind him, place his penis between DF’s thighs and simulate anal sexual intercourse until he ejaculated. On occasions he would insert a finger into DF’s anus through his clothing. On occasions the defendant would attempt to have DF masturbate the defendant. While the defendant was living with his wife, DF stayed at their house overnight on most weekends over two years from the age of about 13 to 15 years and on most of those weekends the defendant masturbated DF’s penis. DF gave evidence that the defendant told him not to tell anyone because if people found out then they would be unable to spend time together. DF complained first to his mother after the defendant had been arrested for abusing his cousin, BP.
AP was older than his brother, BP. From the age of about nine in about 1996, AP would spend time with the defendant, who would take him motorbike riding. AP would work for the defendant at the defendant’s market stall. The defendant would allow him to smoke cigarettes and drink alcohol, and would give AP money. AP would sleep over at the defendant’s house on nights before the day of the markets. On occasions, AP and his brother BP would stay at the defendant’s house together.
AP gave evidence of a regular pattern of sexual activity. AP recalled specific incidents when the defendant would sit on AP’s back in a straddling position while giving AP a massage. The defendant would then tell AP to turn over, massage AP’s chest and then masturbate him. AP stayed over in the house of the defendant and his wife approximately one weekend each month over two years when he was about 11 and 12 years of age. On most of these weekends, the defendant masturbated AP’s penis. AP recalled an occasion when the defendant was sitting on AP and AP was lying on his stomach. Both AP and the defendant were naked. AP could feel the defendant’s penis between the cheeks of his buttocks. The sexual activity occurred late at night when the defendant’s wife was in bed. On one occasion, AP recalled that the defendant’s wife came into the room whilst the defendant was sitting on AP’s back and was straddling him. AP recalled an occasion when the defendant had tried to get him to touch the defendant’s penis and AP had refused. AP first complained at a family meeting after his brother BP had informed his family that he had been sexually abused by the defendant.
BP gave evidence of assisting at the defendant’s Gepps Cross market stall and staying overnight at the defendant’s house. The defendant allowed BP to swear, smoke cigarettes and stay up late at night. The defendant would let BP play computer games, would take him motorbike riding and would pay BP money when he worked at the markets. BP slept over at the house of the defendant and his wife once a month over a period of two years from the age of eight years. BP recounted how sexual activity would occur every time when he stayed overnight at the defendant’s house. He described a course of conduct of sexual activity. There was, according to BP, a regular routine. The defendant would massage BP while BP was on his stomach. He would then roll BP onto his side and would start masturbating BP. On occasions, the defendant would rub lubricant onto BP’s thighs and would place his penis between BP’s thighs and simulate anal sexual intercourse. On occasions, the defendant would ask BP to rub the defendant’s penis and would place BP’s penis between the defendant’s thighs. BP would refuse to do so. When aged about 17 years, BP complained for the first time that he had been sexually abused by his elder cousin.
The defendant did not give evidence; however, his wife and father gave evidence in the defence case.
The defence case was that the evidence from the complainants alleging sexual activity had been concocted. In cross-examination, each complainant denied that they had concocted their evidence.
The Trial Judge’s Reasons
The Judge gave considered reasons for his findings of guilt. In the course of those reasons, his Honour identified the elements of each of the offences charged, discussed the onus of proof and the burden of proof, and recorded the need for separate consideration of each count. His Honour discussed the proper use that can be made of evidence of complaint. The Judge addressed the entitlement of the defendant not to give evidence. His Honour considered the relevant statutory provisions concerning the use of a screen and court companions. The Judge addressed the forensic disadvantage arising from the delay in the making of the complaints. Subject to one matter about the elements of the offence of sexual exploitation, no complaint was advanced on the appeal in regard to any of these matters.

The Judge discussed the significance of the defendant’s plea to the fifth count, being unlawful sexual intercourse in respect of NM. In that respect, the Judge observed:[1]
On the prosecution case it is evidence corroborating the evidence of [NM] in respect of all Counts in which [NM] is the complainant.
The plea is not, however, evidence of the particulars of the offence pleaded to.
The fact of the plea confirms no more than that the elements of the offence have been admitted. Because the Defendant has, by his plea, admitted sexual intercourse I can use the evidence to establish that, at the relevant time, the Defendant had a sexual passion or interest towards [NM].
To that extent it is corroborative evidence in relation to the various counts in respect of which [NM] is the complainant. It is not to be used, however, to reason that the Defendant is of bad character and for that reason is more likely to have committed any of the offences or that he has a propensity to sexually molest an underage person and therefore is more likely to have committed the offences in question.[2]
[1] R v C, G [2013] SADC 16, [26]-[29].
[2] See B v The Queen (1992) 175 CLR 599.
The Judge then turned to discuss the topic of uncharged acts. His Honour described the relevance of such evidence in the following terms:[3]
In relation to each of the complainants, evidence has been led of uncharged acts. That is acts that are criminal but which are not the subject of specific charges.
This evidence is admissible together with evidence of other charged acts against the same complainant to show the nature of the relationship between that complainant and the Defendant, as evidence that the Defendant had a sexual interest in that particular complainant and to assist to explain why the Defendant might have acted confident that a particular complainant would not complain or create a scene and brazenly in circumstances where his wife might readily have discovered him in flagrante delicto.
[3] R v C, G [2013] SADC 16, [30]-[31].
The Judge considered that the evidence of the uncharged acts was evidence of discreditable conduct and this led to a consideration of the terms of section 34P of the Evidence Act 1929 (SA). His Honour’s approach to section 34P was the subject of considerable debate on the appeal. We return to discuss this issue later.
The Judge summarised the evidence of each complainant and then turned to consider the inter-admissibility of that evidence. In that respect, the Judge summarised the prosecution submissions as follows:[4]
[4] R v C, G [2013] SADC 16, [83].
It is said by the prosecution that the following factors demonstrate the underlying unity between the various allegations of the various complainants.
1Use of enticements and gifts including alcohol, cigarettes, presents, outings and lax house rules.
2The complainants all being invited to spend time at the Defendant’s home overnight thus creating the opportunities.
3 The age of the complainants being 8 to 13 and pre-adolescent.
4The common allegation of commission of anal sexual intercourse, simulated anal sexual intercourse and placing the penis between the thighs of the complainants from behind.
5Masturbation in front of the complainant, and requesting the complainant to touch or masturbate the Defendant.
6The use of massages in relation to the male complainants so as to create the opportunity for sexual contact.
The Judge concluded that there was an underlying unity and that the evidence was inter-admissible:[5]
[5] R v C, G [2013] SADC 16, [84]-[91].
It is to be remembered that it is not necessary that the evidence demonstrates “striking similarity”. It is enough that the similarity be sufficient to make the complaints by the various complainants sufficiently similar as to be inexplicable absent collusion.
In my view the descriptions by the various complainants of allegations all against the Defendant are inexplicable unless there has been collusion or concoction between them or that the allegations are true or coincidence.
The conduct alleged by the various complainants is discreditable conduct within the meaning of s 34P of the Evidence Act.
I am satisfied, however, that the evidence of the five complaints admitted for use in considering the improbability that five separate complainants would make similar allegations against the same Defendant is a permissible use within the meaning of s 34P of the Evidence Act and that the probative value of that evidence for that use substantially outweighs any prejudicial effect it may have on the Defendant. Indeed there is no prejudicial effect because I will not use the evidence to reason that the Defendant is more likely to have committed the offences because he has engaged in the discreditable conduct alleged by the other complainants or in any other impermissible manner.
In my view, in the nature of this case where essentially it is the word of an individual alleging something that has happened a considerable time ago, the evidence has strong probative value having regard to the issues arising at trial as it is capable of being evidence from an independent source which strongly supports the case of a particular complainant under consideration.
Further, as I will not reason that the Defendant is more likely to have committed the offence under consideration merely because he has engaged in discreditable conduct with another complainant. I am of the view that the permissible use can be kept separate and distinct from the impermissible use so as to remove a risk of the evidence being used for an impermissible purpose.
In determining to admit the evidence for the permissible use I have had regard to s 34S of the Evidence Act and will not exclude it because the defence asserts that it may be the result of collusion or concoction.
Having admitted the disreputable conduct evidence for the permissible purpose, I direct myself that the permissible use of the evidence relies on the improbability of independent witnesses making similar allegations against the Defendant and that I may reason that the similarities are more than can be explained by coincidence and so the evidence of the complainants may be mutually supporting. I warn myself that this reasoning is only available to me if I am satisfied beyond reasonable doubt that the witnesses did not collude and that their evidence was not contaminated in some other way by unconscious suggestibility and that I must not adopt propensity reasoning.
[Footnote omitted.]
The Judge addressed the evidence of complaint and then turned to consider whether there was any independent evidence tending to support the evidence of each complainant. In that respect, his Honour concluded that there was independent evidence to support JM, NM and AP, but no independent evidence to support the evidence of DF or BP.
The Judge addressed the topic of concoction and unconscious adoption, and rejected that there had been any concoction or unconscious adoption. The Judge considered the evidence of each complainant, before concluding:[6]
I reject, beyond reasonable doubt, that any of the complainants decided to make up allegations because another complainant or complainants had made allegations. I reject, beyond reasonable doubt, any possibility that any of the complainants tailored the nature of the allegations they made based on any information as to the nature of allegations made by any of the other complainants.
I am satisfied beyond reasonable doubt that the five complainants acted remarkably independently when they made disclosures to other persons and on deciding to prosecute.
At no time did any complainant seek to enlist the aid of another complainant to make allegations against the Defendant.
In my view it is highly relevant to note that these five complainants have independently made allegations against the one person disclosing as common factors encouragement by the Defendant for the particular complainant to spend the night at his house, assisted by provision of activities, bike riding, gifts and a generous discipline system, given the age of the complainants. A common factor is that the complainants alleged these events occurred when they were aged approximately 8 – 13 years and were pre-adolescent and that they involve a range of common sexual activities against a background, in the case of the three males, of the use of massages.
[6] R v C, G [2013] SADC 16, [191].
The Judge turned to consider whether there was any evidence casting doubt on the evidence of the complainants. In respect of the evidence of the defendant’s wife, the Judge concluded:[7]
I was not impressed by the evidence of the Defendant’s wife. I formed the distinct impression that she was prepared to tailor her evidence so as to suit what she perceived to be the interests of the Defendant with whom she has stayed and who she has supported notwithstanding the knowledge that he has had sexual intercourse, on his own admission, with a prepubescent 13 year old. It may be that she did not want to see anything which might have been detrimental to their marriage. In any event, the argument that one would have expected her to have seen what the Defendant was doing does not shake my confidence in the evidence given by [JM] or any of the other complainants.
[7] R v C, G [2013] SADC 16, [135].
When dealing with the evidence of AP, the Judge had occasion to again consider the evidence of the defendant’s wife, and in this respect observed:[8]
I have already expressed my view of the evidence of the Defendant’s wife. I have formed the view that she is prepared to distort evidence to help his case. She did not impress me as a witness of truth. I prefer the evidence of [AP] to the evidence of the Defendant’s wife. I do not think that [AP] has made up his account of the Defendant’s wife coming into the room and finding them in flagrante delicto. It would be an unusual thing to make up without knowing whether the obvious witness, the Defendant’s wife, would support it.
[8] R v C, G [2013] SADC 16, [153].
The Judge did not consider that there was any evidence casting significant doubt on the evidence of the complainants.
The Judge discussed the onus of proof in relation to the uncharged acts. His Honour noted that a finding on any uncharged act was not essential in the process of reasoning towards guilt:[9]
In this case none of the uncharged acts i.e. uncharged allegations of sexual misconduct by the Defendant made by the various complainants, nor evidence of other complainants about acts of sexual impropriety by the defendant on them are acts “essential to the process of reasoning leading to a finding of guilt” in the Shepherd sense.
The Judge then concluded:[10]
I accept generally the allegations of the various complainants as to sexual conduct by the Defendant towards them and I reject beyond reasonable doubt the scenario that some of them have either deliberately concocted allegations against the Defendant influenced by some or other of the complainants, or that any of them have subconsciously been influenced by allegations made by other complainants or some of them against the Defendant.
In my view the fact that the five complainants have independently, as I find it, made allegations of a similar nature all against the same Defendant is inexplicable except that the events that they have described did take place or that it was a coincidence. I reject the scenario that it was a coincidence.
[9] R v C, G [2013] SADC 16, [200].
[10] R v C, G [2013] SADC 16, [201]-[202].
The Judge concluded that the evidence of the complainants was, in general terms, both honest and accurate. The Judge made it plain that he considered all the matters put by way of criticism and then concluded:[11]
Having formed a view that the complainants were both truthful and accurate in their evidence supported as some of them were by other evidence confirming that an offence had been committed and that the Defendant was the perpetrator I have considered the totality of the evidence and in particular, whether there is an explanation for the allegations of the five complainants consistent with the Defendant’s innocence which is reasonably possible.
The Judge then turned to his ultimate conclusions.
[11] R v C, G [2013] SADC 16, [209].
As to JM, the Judge concluded:[12]
I find that [JM] was both an honest and substantially accurate witness. I note that her evidence received support from [NM] as to the general circumstances of the visit to South Australia and the living arrangements. It is clear that there was an incident in South Australia involving a discussion about whether she had just commenced to have her period.
There is also some support independent of [JM] that there was an occasion when “The Exorcist” and “Poltergeist” were shown on the television.
None of the cross-examination caused me to doubt the principal evidence of [JM].
Her evidence is bolstered by the evidence of the other four complainants. I do not think she was part of any conspiracy with the other complainants or anyone to falsely accuse the Defendant nor that she was unconsciously influenced by one or more of the other complainants.
I accept the evidence of [JM] beyond reasonable doubt as to its honesty and accuracy.
I find that in January 1994, while [JM] was visiting the Defendant in Adelaide, and while a movie “The Exorcist” or “Poltergeist” was being shown on TV, [JM] put her mouth over the penis of the Defendant, (Count 1), and the Defendant inserted his penis into her vagina, (Count 2) and had anal intercourse with her, (Count 3).
I am satisfied beyond reasonable doubt as to all the elements of each offence.
[12] R v C, G [2013] SADC 16, [210]-[216].
As to NM, the Judge concluded:[13]
[13] R v C, G [2013] SADC 16, [217]-[230].
I find that [NM] was both an honest and substantially accurate witness. I note that her evidence receives support from [JM] as to the general circumstances of the visit to South Australia and the living arrangements. It is clear that there was an incident in South Australia involving a discussion about whether she had just commenced to have her period. There is some independent support for [NM] in that there was indeed an occasion when “The Exorcist” and “Poltergeist” were shown on the television. She claims the offending occurred the night following the showing of these films.
None of the cross-examination caused me to doubt the principal evidence of [NM].
Her evidence is corroborated by the plea of the Defendant to Count 5 and by the payment of $1,000 by the Defendant for her to refrain from advising the authorities that he had sexually interfered with her.
I accept the evidence of [NM] beyond reasonable doubt, corroborated as it is by the evidence of the plea and the evidence in relation to the paying of the $1,000 and the independent evidence in relation to the issue of her period coming while she was in South Australia.
I take into account also the fact that four other complainants have made similar allegations independently of each other and of [NM] for which there is no reasonably explicable explanation save that the allegations were true.
I find that there is no reasonable explanation consistent with innocence and:-
That in January 1994, while [NM] was visiting the Defendant in Adelaide, and the night after a movie “The Exorcist” or “Poltergeist” was being shown on TV, the Defendant came into her bedroom, took her into the lounge room and watched TV with her. He placed his hands over her breasts and then told her to take off her nightdress, took off her underpants, told her to perform fellatio on him, (Count 6).
He thereafter told [NM] to lie on her side and put his penis into her anus, (Count 7).
Thereafter he lay on top of her and put his penis inside her vagina, (Count 5).
As her underwear was being put on she noticed blood on her underwear and the Defendant said “Don’t worry you’ve just got your period”.
I find that some days later the Defendant came to her room and awoke her, took her to the garage, told her to undress and placed his penis in her anus, (Count 8).
A day or so later, I find the Defendant came and woke her and took her to the garage again and placed his penis inside her vagina, (Count 9).
I find that at some stage during this sojourn in Adelaide the Defendant took [NM] and [JM] away camping to Victor Harbor. On this occasion, whilst on the bed with the complainant and the other children, the Defendant grabbed [NM’s] hand and started rubbing it on his penis and on his legs, (Count 10).
I find all the elements of the offences proved beyond reasonable doubt.
[Footnotes omitted.]
As to DF, the Judge concluded:[14]
[14] R v C, G [2013] SADC 16, [231]-[235].
I accept the evidence of [DF] beyond reasonable doubt both as to its truthfulness and accuracy.
I also rely on the fact that four other complainants have independently, as I find it to be, made similar allegations against the Defendant.
I find that for a period of time [DF] would stay overnight with the Defendant at a house in Salisbury North and during this time the Defendant would give him a massage.
During this time I find the following:
-     The Defendant was an adult person.
-     The Defendant committed more than one act of sexual exploitation. This included masturbation of [DF’s] penis, placing of his penis between the legs of [DF]. For the purposes of the offence I identify at least two acts of masturbating [DF’s] penis.
-     These acts occurred over a period of not less than three days (indeed they occurred over many weekends).
-     At the time of these acts [DF] was under the age of 17 years.
-     All the elements of the offences have been established beyond reasonable doubt.
I find Count 11 proved beyond reasonable doubt.
[Footnotes omitted.]
As to AP, the Judge concluded:[15]
[15] R v C, G [2013] SADC 16, [236]-[247].
I accept the evidence of [AP] both as to its accuracy and truthfulness.
I also rely on the evidence that four other complainants have independently made similar allegations.
I find that he started visiting the Defendant’s home at a time when the Defendant was living with his wife and two children. He was going to [Primary School] and would spend the night at the Defendant’s place perhaps once a month.
[AP] would sleep in the lounge.
The Defendant would take him motorbike riding and to help at the “Trash and Treasure” market at Gepps Cross on early Sunday morning.
The Defendant would give him Jim Beam and cigarettes. When he would stay over on most occasion’s sexual activity would occur between them. The Defendant would massage him, would straddle him and on one occasion, when [AP] had no clothes on, the Defendant placed his penis between [AP]’s buttocks.
The Defendant would massage his chest and down to his penis and masturbate him.
This activity occurred before the Defendant moved to Perth.
On one occasion the Defendant returned from Western Australia to attend a funeral and slept in the lounge room of [AP’s] home.
On that night [AP] was masturbated by the Defendant.
I am satisfied beyond reasonable doubt that at the time of these events,
-     The Defendant was an adult person.
-     The acts that I have described took place on more than one occasion and if properly particularised could be the subject of a charge of a sexual offence. For the purposes of the charge I identify at least two acts of masturbating [AP’s] penis.
-     The acts occurred over a period of not less than three days.
-     [AP] was, at the relevant time, under the age of 17 years.
I therefore find Count 12 proved beyond reasonable doubt.
[Footnotes omitted.]
As to BP, the Judge concluded:[16]
[16] R v C, G [2013] SADC 16, [248]-[258].
I accept the evidence of [BP] both as to its accuracy and truthfulness beyond reasonable doubt.
I also accept and rely on the evidence that four other complainants have independently, as I find it to be, made allegations of a similar nature against the Defendant.
I find that when [BP] was about 8 years old he would sleep over at the Defendant’s premise and help him at the “Trash and Treasure” market at Gepps Cross early Sunday morning.
At the relevant time the Defendant was living at Paralowie with his wife and two children.
While visiting the Defendant’s home [BP] was allowed to swear, stay up late and smoke.
He would stay up late playing computer games.
In the lounge room, in the early hours of one morning, the Defendant asked [BP] if he would like a massage. He removed all of [BP’s] clothing and underwear and touched his buttocks and penis.
He would masturbate [BP] and he would put his penis between the thighs of [BP], when he was behind [BP].
This activity stopped when the Defendant moved to Perth but [BP] continued to stay in contact by letters and emails.
I am satisfied beyond reasonable doubt of the following,
-     The Defendant was an adult person at the relevant time.
-     The Defendant committed more than one of the acts I have described which if properly particularised could be the subject of a charge of a sexual offence. For the purposes of the charge I identify at least two acts of indecent assault by placing his penis between [BP’s] thighs.
-     That the acts occurred over a period of not less than three days.
-     At the time of the relevant acts [BP] was under the age of 17 years.
I therefore find Count 13 proved beyond reasonable doubt.
[Footnotes omitted.]

The Judge then considered the matter on the basis that the uncharged acts had to be proved beyond reasonable doubt and proceeded to consider whether the charges had been made out without reference to the evidence of the uncharged acts.
The Judge first considered the charges relating to NM and reached the conclusion that, without regard to either the evidence of uncharged acts or the evidence relevant to the other complainants, the counts involving NM had all been proved beyond reasonable doubt. His Honour then proceeded to discuss the charges relating to JM, having regard to the conclusions he had reached in regard to NM. The Judge subsequently proceeded to consider the charges relating to DF, then AP, and finally BP. Through this process, his Honour concluded that all charges had been proved beyond reasonable doubt.
The Appeal
An Error of Law – Section 34P
During the course of the appeal, the Court’s attention was drawn to a recent decision of this Court in C, CN.[17] It was contended that that decision was authority for the proposition that when evidence of discreditable conduct is led, a judge is obliged to consider each matter raised by section 34P of the Evidence Act.
[17] R v C, CN [2013] SASCFC 44.
To understand this contention, it is helpful to record the terms of section 34P of the Evidence Act, which are as follows:
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)     cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)     is inadmissible for that purpose (impermissible use); and
(c)     subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a)     the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b)     in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)Subject to subsection (5), a party seeking to adduce evidence under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5)The court may, if it thinks fit, dispense with the requirement in subsection (4).
The defendant contended that when evidence of discreditable conduct is led, the obligation to consider each matter raised by section 34P arises even where there is no objection to the admissibility of the proposed evidence. Counsel went so far as to suggest that, in the present proceeding, as the Judge did not satisfy himself of the admissibility of the discreditable conduct evidence, an error of law had occurred notwithstanding that the evidence had not been the subject of objection by the defendant. Counsel submitted that this was an error of law that would, of itself, lead directly to a consideration of the proviso.[18]
[18] Criminal Law Consolidation Act section 353(1).
In C, CN, White J, when addressing section 34P, observed:[19]
The manner of expression of subs (2) indicates that a trial judge must be positively satisfied that the conditions for admissibility do exist: they are not matters for the parties’ agreement, nor are they matters which need not be addressed in the absence of formal objection by the opposing party. Section 34P(2) means what it says: the admission of discreditable conduct evidence is made expressly contingent on a trial judge’s satisfaction of the specified matters, and in forming the requisite satisfaction the judge must have regard to the matters specified in subs (3). A party’s consent, or an absence of objection, may assist a judge in reaching the requisite state of satisfaction, but they cannot be a substitute for that satisfaction. That does not preclude parties and the courts from adopting flexible procedures, eg, in a trial by judge alone, the parties may agree that the judge should hear the proposed evidence of discreditable conduct as part of the trial in order to facilitate a ruling on the admissibility of the evidence at the close of the prosecution case.
Section 34P(4) also contains an important procedural safeguard, in that it requires a party intending to adduce evidence of discreditable conduct to give reasonable notice in writing (in accordance with rules of court) to each other party to the proceedings. The purpose of the notice is obvious enough: to facilitate a determination of whether separate trials will be appropriate;[20] to ensure that the other parties to the proceedings and the court are put on notice that the admissibility of evidence of discreditable conduct will have to be addressed; and to facilitate the court dealing with the issue of admissibility in accordance with the preceding provisions of s 34P.
Later in his reasons, White J further observed:[21]
It is not necessary, for the disposition of this appeal, to address the consequence of evidence of some discreditable conduct having been admitted without objection.
Blue J, on this issue, noted:[22]
If the applicant had argued on appeal that the trial Judge erred in admitting Unchallenged Evidence, the first question to arise would be whether on the proper construction of section 34P(2) a trial judge is required to exclude evidence falling within the definition of discreditable conduct evidence when no objection is taken to its admission unless the judge is affirmatively and objectively satisfied after full consideration that the criteria are satisfied. There are numerous sections of the Evidence Act 1929 (SA) which are also expressed in mandatory language.[23] It is arguable that some or all of these provisions proceed on the assumption that objection is taken to admission of the evidence. If such provisions were construed so as to require the trial judge to be affirmatively and objectively satisfied that the criteria for admission of evidence are satisfied notwithstanding no objection is taken to it, various consequences would follow. Most of those provisions do not require advance notice to be given of intention to adduce the evidence. Even where advance notice is required (as is the case under section 34P(4)), there is a possibility that the notice will not come to the attention of the trial judge or that evidence will be adduced without notice having been given. A trial judge would need to be constantly astute to detect questions which might result in the adducing of discreditable conduct evidence (or any other evidence governed by other provisions of the Act requiring mandatory satisfaction of the trial judge before admissibility) and then intervene before the witness answers notwithstanding no objection is taken to the question. In the presence of a jury, this may introduce additional complications. Ultimately, the conclusion might be reached that the mandatory terms of the Act require a trial judge to be objectively and affirmatively satisfied of the criteria notwithstanding that there is no objection, but I consider it is preferable that full argument be heard on the question before deciding the point.
[19] R v C, CN [2013] SASCFC 44, [18]-[19]; Peek J agreed with the reasons of White J.
[20] See Criminal Law Consolidation Act 1935 (SA) s 278, in particular, s 278(2a).
[21] R v C, CN [2013] SASCFC 44, [33].
[22] R v C, CN [2013] SASCFC 44, [76].
[23] See, for example, ss 13D(1), 18(1)(d), 30, 34C, 34CA, 34J(3), 34K(1), 34KA(1), 45B(2), 45C, 47(2), 59B(2).
On the hearing of the appeal, all counsel accepted that the above observations of White J did not form part of the ratio decidendi of the decision. This Court was informed that the Court in C, CN[24] did not have the advantage of submissions of the parties on this issue of construction.
[24] R v C, CN [2013] SASCFC 44.
The Director of Public Prosecutions submitted that the views expressed by White J did not reflect a proper construction of section 34P of the Evidence Act. It was submitted that a judge is not required to consider the admissibility of discreditable conduct evidence when it is unchallenged by the defendant. As earlier noted, in the present proceeding, defence counsel did not object to the admissibility of the evidence. However, counsel wished to be heard as to the use to which the evidence was to be put.
It is to be noted that section 34P(4) of the Evidence Act requires the prosecution to provide particulars of discreditable conduct. Rule 16 of the District Court Criminal Rules 2013 (SA) addresses the giving of particulars, and the obligation on the other party to indicate what aspect, if any, of the evidence is the subject of objection.
To our minds, if proposed evidence is under challenge, a judge is obliged to consider whether the evidence should be admitted. In the absence of the judge reaching a conclusion that the evidence should be admitted, it is to be excluded. If the evidence is unchallenged, we do not consider that the judge has to consider its admissibility under section 34P of the Evidence Act. Issues may, however, arise as to the proper use of the evidence.
Counsel for the defendant suggested that Parliament, in using the phrase in section 34P(2) “the judge is satisfied”, was placing an obligation on the judge to be satisfied notwithstanding that the proposed evidence was unchallenged. Attention was drawn to section 21 of the Evidence Act. This section addresses the compellability of a witness to give evidence and raises issues far different to those arising under section 34P.
Another example of legislation obliging a judge to follow a procedure notwithstanding the consent of the parties is to be found in section 9 of the Evidence Act. That section concerns the power of a judge to permit a witness to give evidence without taking an oath. In Starrett,[25] this Court considered that a court is required to make the appropriate enquiries and that a failure to do so is an error of law. Doyle CJ observed:[26]
Guided by that authority, I conclude that the irregularity is a substantial one. It gives rise to a miscarriage of justice. The trial has not been conducted regularly. Although the irregularity does not affect the credibility of the evidence, the departure from the proper procedures is fundamental, and makes it inappropriate to apply the proviso. This is what the High Court has described as a "radical or fundamental error", which may "go either to the form of the trial or the manner in which it was conducted": Wilde v The Queen(1988) 164 CLR 365 at 373 per Brennan, Dawson and Toohey JJ. I consider that it would not be appropriate to apply the proviso in the present case. As I have said several times, the irregularity is a substantial one. The basis upon which a witness gives evidence, sworn or unsworn, is a fundamental aspect of the trial system.
Accordingly, while it is most regrettable that the verdict should be set aside on what may appear to be a technicality, I consider that the court has no choice other than to allow the appeal, set aside the conviction and to order a retrial. Hopefully, this decision will bring home to trial judges and to counsel the importance of paying appropriate attention to the requirements of the Act in relation to the giving of evidence. While the ultimate responsibility in this respect is that of the judge, counsel in the case also have a responsibility to attend to the appropriate procedure. In the present case it is regrettable that neither the prosecutor nor counsel for the defence raised these matters with the judge.
[Emphasis added.]
It may be readily understood why the circumstance that occurred in Starrett[27] amounted to an error of law. We refer to the emphasised passages in the above extract. The considerations that arose in Starrett[28] do not arise under section 34P. A failure to consider all the matters raised by section 34P does not give rise to a radical or fundamental error where there has been no objection to the admissibility of that evidence. Section 34P does not address a fundamental aspect of the trial system.
[25] R v Starrett (2002) 82 SASR 115.
[26] R v Starrett (2002) 82 SASR 115, 122.
[27] R v Starrett (2002) 82 SASR 115.
[28] R v Starrett (2002) 82 SASR 115.
In our view, counsel’s concession as to admissibility in the present proceeding operated to exclude any obligation on the Judge to consider the admissibility of the evidence strictly in accordance with section 34P. Questions as to the proper use of the evidence remained for consideration. With respect, we disagree with the construction advanced by White J in C, CN.[29] We consider that the submissions of the Director should be accepted.
[29] R v C, CN [2013] SASCFC 44.
Concoction
Counsel for the defendant submitted that the Judge failed to properly consider and weigh the evidence on concoction. Attention was drawn to the evidence of AS that in around 1994, JM and NM separately informed her that they had been sexually assaulted by a relative, and that in around 1995, AS discussed this matter while in the presence of both JM and NM. JM gave evidence of a discussion with AS about sexual abuse. NM did not refer to such a conversation. It was said that the evidence of AS was inconsistent with evidence given by NM that she had not told anyone about the abuse until she was aged 17 years, and that it was not until 2009 that she first learned that JM had also been sexually molested by the defendant. It was said that the Judge failed to address this apparent inconsistency when assessing the possibility of concoction and the credibility of NM. However, no application was made on behalf of the defendant to recall NM for further cross-examination in light of AS’s evidence. In essence, this was a challenge to discretionary findings of fact by the Judge.
We do not consider that any error has been shown on the Judge’s part. His Honour was entitled to accept AS’s evidence. His Honour was also entitled to accept the evidence of JM and NM that there had been no concoction. The evidence of AS and NM was relevantly consistent. According to AS, there was no reference during the discussion between AS, JM and NM to either the identity of the person who had sexually molested JM or NM, or to the circumstances of the molestation. The fact that many years later there may be some differences of memory as to who said what to whom does not lead to a reasonable possibility of concoction, and does not lead to a finding that the prosecution failed to disprove concoction. The result of acceptance of NM’s evidence was that there was no concoction by JM and NM. AS said that each of them had told her of the sexual abuse by a relative independently.
The Judge had regard to the minimal contact between the five different complainants when considering concoction and what he described as “unconscious adoption”.[30] The Judge accepted that the assertions made by defence counsel had been refuted. The Judge was entitled to reach the conclusion that there was no reasonable possibility of concoction or contamination. Nothing has been identified that casts any doubt on the Judge’s conclusions.
[30] R v C, CN [2013] SASCFC 44, [162].
Inter-admissibility
As earlier observed, inter-admissibility between the evidence of JM and NM was not in issue, and nor was inter-admissibility between the evidence of DF, AP and BP. The Judge, however, reached the conclusion that there was an underlying unity that justified inter-admissibility of all counts.
A system utilised by the defendant underpinned that underlying unity. The defendant engineered an atmosphere of affection between himself and his younger cousins, the complainants. He created opportunities to sexually abuse the complainants. The defendant created a bond between himself and the complainants by giving them presents and money, while allowing them to smoke cigarettes and drink alcohol. He developed this bond by allowing them privileges that they did not enjoy in their homes; a relaxation of rules. Although his methodology varied slightly, this was no more than a reflection of the need for the defendant to adapt his methodology to different circumstances.
In M, BJ,[31] this Court set out the test for admissibility at common law of conduct in relation to other complainants in similar circumstances. This test remains apt under section 34P of the Evidence Act. Vanstone J, with whom Sulan and White JJ agreed, said:[32]
The probative value of such evidence might arise from the fact that it bears striking similarities to the allegations made in relation to another offence for which the accused is on trial. But equally its strength might lie in the “‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ [which it reveals] such that it raises, as a matter of common sense and experience, the objective improbability of some event having occurred other than as alleged by the prosecution”: Hoch v The Queen (1988) 165 CLR 292 at 294-295. The process of reasoning involved is that of “admeasuring the probability or improbability of the fact or event in issue, … given the fact or facts sought to be adduced in evidence”: Martin v Osborne (1936) 55 CLR 367 at 385 per Evatt J. To put it slightly differently, there needs to be such a nexus between the various sets of allegations that they must either all be true or have arisen from “a cause common to the witnesses or from pure coincidence”: Director of Public Prosecutions (UK) v Boardman [1975] AC 421 at 444 per Lord Wilberforce.
[31] R v M, BJ (2011) 110 SASR 1.
[32] R v M, BJ (2011) 110 SASR 1, 12. See also R v Ellis (2010) 107 SASR 94, 105-107 per Sulan J (Duggan J agreeing), 120 per Kourakis J.
We are satisfied that the Judge fairly weighed the evidence on the topic of inter-admissibility. Earlier in these reasons, we have set out in some detail the evidence of each of the complainants. That evidence discloses that the defendant engaged in a course of conduct in regard to each complainant that had marked similarities to the course of conduct with the other complainants. His sexual activity included anal sexual activity, masturbation of the complainants and masturbation of himself in front of the complainants. The sexual offending against each complainant included offending that occurred in the defendant’s home at night. The accounts of JM and NM on the one hand, and DF, AP and BP on the other, revealed such similarities and an underlying unity and pattern that it raised to the sufficient degree the improbability of the events occurring by mere coincidence and other than as alleged by the prosecution in the absence of concoction between the respective witnesses. The probative value of the discreditable conduct evidence substantially outweighed any prejudiced effect on the defendant. We see no basis on which it can be said that the Judge erred in reaching his conclusions on inter-admissibility.
Corroboration
The Judge’s approach to corroboration or supporting evidence was criticised. Earlier in these reasons we have extracted the portion of the Judge’s remarks in regard to corroboration.
Complaint was made about the Judge’s reference to the evidence of JM and NM about vaginal bleeding. JM had brought the fact of the bleeding to the attention of the defendant’s wife at the time of the offending, NM could not recall discussing the issue of bleeding with the defendant’s wife, but did recall being provided with a sanitary pad by the defendant’s wife. The defendant’s wife raised this matter with the girls’ mother. Evidence from the mother of the girls excluded the bleeding from being associated with any commencement of the girls’ periods. As a consequence, the evidence provided some support to the accounts of JM and NM.

In regard to AP, the Judge found some support for his testimony in his tearing up of photographs of the defendant, which was independent evidence of the allegations that he made against the defendant. The Judge accorded this evidence limited weight in showing consistency of conduct on the part of the complainant.
We do not consider that the Judge’s approach to corroboration or supporting evidence can be fairly criticised. We do not consider that the Judge misused this evidence.
Count 4
Count 4 was not the subject of a specific ground of appeal. The Court was informed that the issue was raised with the Judge during sentencing submissions. On that occasion, the Judge sentenced the defendant pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) on all counts including count 4. The Judge indicated that the failure to specifically refer to a finding that the act of sexual intercourse constituting count 4 had been proved beyond reasonable doubt was “an oversight”. The Judge later indicated that he had not sent a trial report because he had not been aware of this issue and had not been provided with a copy of the final grounds of appeal.
Counts 1, 2, 3 and 4 all related to JM. The Judge referred to the alleged facts constituting count 4 when outlining the prosecutor’s allegations against the defendant. It is clear that the Judge accepted the honesty and reliability of JM’s evidence beyond reasonable doubt. The Judge further recorded verdicts of guilty in relation to counts 1 to 13, with the exception of count 5 to which the defendant had pleaded guilty.
The Director submitted that the Judge’s failure to refer to the facts the subject of count 4 when making findings of fact was consistent with there being an oversight. The Director further submitted that this Court should request the Judge to provide a report in relation to count 4 pursuant to rule 12 of the Supreme Court Criminal Appeal Rules 1996 (SA). It was accepted that the use that may be made of such a report is not clear. It was further accepted that there would appear to be some limitations on the circumstances in which a report from a Judge could be used to rectify an error.
Attention was drawn to the decision in Borg v Gelios,[33] where the Full Court, sitting in its civil jurisdiction, received a report from the trial Judge indicating the basis upon which he considered that particular evidence was admissible. The Director submitted that this decision is consistent with the Court, in some circumstances, permitting a trial report to deal with topics upon which written reasons could have been given.
[33] Borg v Gelios (Unreported, Full Court of the Supreme Court of South Australia, Cox, Matheson, Debelle JJA, 8 May 1996).
Counsel for the Director accepted that if the Judge had made no findings of fact or findings as to credibility and reliability, a trial report could not be used to rectify such a deficiency in the reasons for verdict. However, the circumstances of the present case were said to be materially different. The Judge summarised the prosecution’s case with respect to count 4 as follows:[34]
Later, during the holiday, the Defendant and his wife were in the process of moving house. [JM] was assisting and went with the Defendant alone to a house that was unfurnished. They went to the bedroom of that house and the Defendant removed her pants and underwear, took his clothes off and inserted his penis into her vagina (Count 4).
[34] R v C, G [2013] SADC 16, [54].
The Judge identified through footnotes the evidence of JM concerning the conduct which comprises count 4. The Judge made clear and unambiguous findings of reliability and credibility in relation to the complainant and her evidence. The Judge specifically found the defendant guilty of count 4 along with the other counts. It was submitted that, in circumstances where there have been such findings and a finding of guilt on count 4, such a report from the trial Judge may be used to dispel any concerns on the part of this Court as to the failure to refer specifically to the facts of count 4.
The Director submitted that, in any event, the findings of the Judge were sufficient to allow this Court to review the process of reasoning undertaken by the Judge and to be satisfied that the ultimate verdict of the Judge on count 4 was not occasioned by error.
An issue of some comparability arose before the Court in Ames.[35] In that case, the Judge, who conducted a judge alone trial on a charge of murder, reached the conclusion that guilt had been established and recorded a conviction. In the course of the Judge’s reasons, no findings were made with respect to the mental element of murder. The Full Court upheld the verdict and on this question, Gray J, with the concurrence of Kelly J, observed:[36]
Notwithstanding the topic not being expressly stated, I have reached the conclusion that the trial Judge addressed the mental element of the offence of murder and was satisfied that the prosecution had proved either the intent to kill or cause grievous bodily harm. I consider that as the Judge earlier directed himself as to each of the elements of the offence of murder and the need for each element to be proved beyond reasonable doubt it is necessarily implicit in the Judge’s ultimate finding that the offence had been proved beyond reasonable doubt. The context of the trial and the final submissions provide a ready explanation for the course followed by the trial Judge. However, I endorse the observations of David J that it would have been desirable for the Judge to have made specific findings as to each of the elements of the offence of murder as charged.
[35] R v Ames [2012] SASCFC 75.
[36] R v Ames [2012] SASCFC 75, [26]. David J reasoned to a similar effect at [87].
In the present proceeding, the reasons of the Judge disclose that he identified each of the elements of the offence the subject of count 4. The Judge made it plain that he considered that count 4 had been proved beyond reasonable doubt. The Judge observed:[37]
Having subjected the facts and the case to analysis by both methods I am satisfied beyond reasonable doubt that all charges have been proved beyond reasonable doubt.
The Judge entered a verdict of guilty on counts 1 to 13 excluding count 5, to which the defendant has pleaded guilty.
[37] R v C, G [2013] SADC 16, [273].
It is clear that a trial judge sitting alone must provide reasons for any verdict recorded. One would expect a judge to make all relevant findings of fact. So analysed, this appeal raises a complaint as to the adequacy of the Judge’s reasons. An inadequacy of reasons imposes a burden on the appeal court to review the relevant evidence and to reach its own conclusion as to whether the appeal should be allowed. In the present case, we are satisfied that the Judge’s conclusions as to the credibility and reliability of JM were reasonably open. Our review of the evidence suggests that these conclusions were not only open but were correct. We are further satisfied that each of the facts necessary to prove each of the elements of count 4 beyond reasonable doubt were established. In these circumstances, we do not consider it necessary to seek a report from the Judge or to have regard to the observations during sentencing submissions.
The Plea of Guilty to Count 5
The defendant complained of the use that the Judge made of the defendant’s plea of guilty to count 5. Earlier in these reasons, we have set out the Judge’s observations in regard to the plea and the use to be made of it. As the Judge observed, the plea was only an admission to the elements of that offence. The offence was alleged to have occurred on the same occasion as counts 6 and 7. The admissions of the defendant through the plea provided direct support for NM’s evidence that vaginal sexual intercourse had taken place as part of the incident involving that act and the acts comprising counts 6 and 7. The admissions of the defendant revealed the defendant’s sexual interest in NM and a willingness on his part to act on that sexual interest. The evidence was also relevant to rebut concoction or contamination in relation to that aspect of NM’s evidence. The Judge was entitled to make use of the admissions made as a consequence of the defendant’s plea in support of NM’s evidence.
The Offence of Persistent Sexual Exploitation
Section 50 of the Criminal Law Consolidation Act 1935 (SA) provides:
(1)An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2)For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
(3)If—
(a)     at any time when an act of sexual exploitation of a child was allegedly committed the child was at least 16 years of age; and
(b)     the defendant proves that he or she believed on reasonable grounds that the child was of or over the prescribed age at that time,
the act of sexual exploitation is not to be regarded for the purposes of an offence against this section.
(4)Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a)     subject to this subsection, the information must allege with sufficient particularity—
(i)the period during which the acts of sexual exploitation allegedly occurred; and
(ii)    the alleged conduct comprising the acts of sexual exploitation;
(b)     the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
(c)     the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i)in relation to the child who is allegedly the subject of the offence against this section; and
(ii)during the period during which the person is alleged to have committed the offence against this section,
must be charged in the alternative.
(5)A person who has been tried and convicted or acquitted on a charge of persistent sexual exploitation of a child may not be convicted of a sexual offence against the same child alleged to have been committed during the period during which the person was alleged to have committed the offence of persistent sexual exploitation of the child.
(6)This section applies in relation to acts of sexual exploitation of a child whether they were committed before or after the commencement of this section.
(7)     In this section—
prescribed age, in relation to a child, means—
(a)     in the case of a person who is in a position of authority in relation to the child—18 years;
(b)     in any other case—17 years;
sexual offence means—
(a)     an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b)     an attempt to commit, or assault with intent to commit, any of those offences; or
(c)     a substantially similar offence against a previous enactment.
(8)For the purposes of this section, a person is in a position of authority in relation to a child if the person is—
(a)     a teacher (within the meaning of the Education and Early Childhood Services (Registration and Standards) Act 2011) engaged in the education of the child; or
(b)a foster parent, step parent or guardian of the child; or
(c)     a religious official or spiritual leader (however described and including lay members and whether paid or unpaid) providing pastoral care or religious instruction to the child; or
(d)     a medical practitioner, psychologist or social worker providing professional services to the child; or
(e)     a person employed or providing services in a correctional institution (within the meaning of the Correctional Services Act 1982) or a training centre (within the meaning of the Young Offenders Act 1993), or any other person engaged in the administration of those Acts, acting in the course of his or her duties in relation to the child; or
(f)    an employer of the child or other person who has the authority to determine significant aspects of the child's terms and conditions of employment or to terminate the child's employment (whether the child is being paid in respect of that employment or is working in a voluntary capacity).
The elements of the offence of persistent sexual exploitation of a child were identified in unexceptional terms by the Judge as follows:[38]
The elements of the offence of Persistent Sexual Exploitation of a Child are as follows:
1      That the Defendant is an adult person.
2      That the Defendant committed more than one act of sexual exploitation. An act of exploitation is an act which if it were able to be properly particularised could be the subject of a charge of a sexual offence.
3      That the acts must have occurred over a period of not less than three days.
4      That the acts must have occurred in respect of a child under the prescribed age. The prescribed age is 17 years.
[38] R v C, G [2013] SADC 16, [6].
The defendant submitted that to make out the charge it was necessary for at least two specific acts of sexual offending to be identified. It was argued that the Judge had not made findings that would allow the convictions to stand. Earlier in these reasons, we have set out the findings of the Judge in respect of each of BF, AP and BP. We point out that, in respect of each child, the Judge made a specific finding that there had been more than one act of sexual exploitation occurring over a period of not less than three days. Those findings were supported by the evidence.
In the case of DF, the Judge made a specific finding of two acts of masturbating DF’s penis more than three days apart. The Judge footnoted passages from the evidence of DF that, over a period of several years when he was aged about 12 to when he was aged about 15 years, DF stayed overnight at the house of the defendant and his wife on most weekends and, on most of those occasions, the defendant masturbated DF’s penis.
In relation to AP, the Judge made a specific finding of two acts of masturbating AP’s penis more than three days apart. The Judge footnoted passages from the evidence of AP that, over a period of two years when he was aged about 11 and 12 years, he slept over on weekends approximately once a month, amounting to about 20 occasions in all, and on most of those occasions the defendant masturbated AP’s penis.
In relation to BP, the Judge made a specific finding of two acts of indecent assault by the defendant placing his penis between BP’s thighs, more than three days apart. The Judge footnoted passages from the evidence of BP that, over a period of two years from the age of eight years, he stayed overnight at the house of the defendant and his wife once a month and on those occasions the defendant placed his penis between BP’s thighs.
The defendant submitted that in order to find an offence contrary to section 50 of the Criminal Law Consolidation Act, it was necessary for each complainant to identify, and the Judge to find, either the date on which the separate sexual offences were committed or alternatively the occasion with sufficient particularity to separate each occasion from the other. We reject that contention. It is contrary to the express provisions of section 50(4)(b) as earlier extracted.
It was necessary for the evidence to establish, and the Judge to find, acts comprising sexual offences committed over a period of not less than three days. The Judge did this by identifying specific types of acts in each case; masturbating DF’s penis, masturbating AF’s penis, and placing his penis between BP’s thighs, and in each case on regular occasions over a period of about two years, as summarised above. It was not necessary that the evidence establish, or the Judge find, specific, uniquely identified occasions on which those acts took place.
The purpose of section 50 in this respect was identified by the Attorney-General in his Second Reading speech:[39]
The current offence of persistent sexual abuse was enacted to overcome problems such as those identified by the High Court in the case of S v The Queen and by the South Australian Court of Criminal Appeal in R v S. In that case multiple offences against the same child were charged as having occurred between two specified dates, each one being part of an alleged continuous course of conduct. Because the evidence given on the alleged course of conduct was not sufficiently related to the particular charges, in that the child could not identify particular occasions and link them with particular counts, an appeal against conviction was allowed and an acquittal entered.
The offence of persistent sexual abuse is rarely charged because it fails to overcome the very problem of particularity that it tried to remedy. Children are still unable to identify precisely each separate incident of abuse that is required to prove the offence.
The new offence has the same aim as the current offence; to punish the persistent sexual abuse of a child, and not just the sexual acts that can be identified with enough particularity to be charged as specific offences in themselves.
…
Often, children who have been subjected to long-term sexual abuse can remember in some detail when the abuse started and when it ended, so that the first and last alleged acts are often capable of being charged as specific offences, but can’t remember the detail of when and where each of the many intervening acts occurred enough to distinguish each one from the other. That is why all these acts cannot be charged as specific offences, and why, when convicted of only the acts that can be so charged, the law fails to recognise or punish the full extent of the abuse. The current offence aims to overcome this but has not worked.
The new offence focuses on acts of sexual exploitation that comprise a course of conduct (persistent sexual exploitation) rather than a series of separately particularised offences.
[39] South Australia, Parliamentary Debates, House of Assembly, 25 October 2007, 1473-1474 (Michael Atkinson, Attorney-General).
The defendant relies upon decisions concerning legislation in other jurisdictions, including Queensland and Victoria, which are in very different terms to the provisions of section 50 of the Criminal Law Consolidation Act. In KBT,[40] the High Court considered the provisions of section 229B of the Criminal Code 1899 (Qld) which created an offence of maintaining an unlawful sexual relationship with a child. Section 229B(1A) explicitly provided that, to be convicted, it must be proved that the defendant did an act defined to constitute an offence of a sexual nature in relation to the child on three or more occasions. The section provided that evidence of the doing of any such act was admissible notwithstanding that it did not disclose the dates or the exact circumstances of those occasions. The High Court held that the wording of the section required the prosecution to prove the actual commission of acts on three separate and distinct occasions and that it was insufficient for the prosecution merely to adduce evidence of a general course of sexual misconduct or a general pattern of sexual misbehaviour.[41] The High Court went on to hold that the trial Judge had erred by failing to direct the jury that they needed to agree on the same three acts and it was not sufficient that different members of the jury were persuaded of the commission of different acts.[42] Section 47A of the Crimes Act 1958 (Vic) is in similar terms to section 229B of the Queensland Criminal Code. In SLJ,[43] the Victorian Court of Appeal applied a similar approach to that of the High Court in KBT.[44]
[40] KBT v The Queen (1997) 191 CLR 417.
[41] KBT v The Queen (1997) 191 CLR 417, 422-423.
[42] KBT v The Queen (1997) 191 CLR 417, 423-424.
[43] R v SLJ (2010) 24 VR 372; See also REE v The Queen (2010) 203 A Crim R 11.
[44] KBT v The Queen (1997) 191 CLR 417.

Section 50 of the Criminal Law Consolidation Act is in markedly different terms to the Queensland and Victorian provisions. It is also in markedly different terms to its progenitor, namely section 74 of the Criminal Law Consolidation Act.
It is clear from the wording of section 50(1) and (2) that the actus reus of the offence is more than one act of sexual exploitation of a particular child committed over a period of not less than three days. Section 50(4)(b) provides that the information need not “identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred”.
In Warsap,[45] this Court considered the meaning of section 50, and in particular, section 50(4)(b) and concluded that persistent sexual exploitation may be proved without proof of particular occasions on which the acts occurred. Bleby J observed:[46]
It is to be noted that the particulars to be alleged do not require that degree of particularity that would be required if the act were charged as a separate offence, nor is it necessary to identify particular acts of sexual exploitation or the occasions on which or the places at which or the order in which the acts are alleged to have occurred. It follows that the offence may be proved without proof of particular dates or occasions on which the acts of sexual exploitation are alleged to have occurred or the order in which they occurred. It will be sufficient if a pattern of offending behaviour during the relevant period is established beyond reasonable doubt.
[45] R v Warsap (2010) 106 SASR 264.
[46] R v Warsap (2010) 106 SASR 264, 267. Duggan and White JJ agreed with the observations of Bleby J.
The identification by the Judge of the sexual acts committed by the defendant in respect of each of DF, AP and BP met the requirements of section 50.
One further complaint was advanced on this topic. It was said that the Judge failed to identify the elements of the offence of indecent assault. It is to be accepted that the Judge did not expressly do so. However, his Honour’s findings of fact make out each of the elements of that offence. We do not consider that there can be any suggestion that the Judge failed to turn his mind to the elements of the offence of indecent assault or that he had any misunderstanding about those elements.
Conclusion
When the entirety of the evidence is reviewed, we are satisfied that this was an overwhelming prosecution case. There is no basis to suggest that the verdicts were unreasonable or cannot be supported having regard to the evidence. No risk of a miscarriage of justice has been demonstrated.
This appeal is dismissed.